Criminal Procedure MEE Rule Statements

Terry Stop (Seizure)

A temporary detention for the purpose of a criminal investigation is a "stop," and is still a seizure for 4th Amendment purposes. A stop is valid when an officer has reasonable suspicion that someone is engaged in criminal activity.

Stop and Frisk (Exception to Warrant Requirement)

A temporary detention for the purpose of a criminal investigation is a "stop." A stop must be based on a reasonable suspicion that the suspect is engaged in criminal activity, based upon articulable facts. An officer who does not have probable cause to arrest may make a limited search ("frisk") of a person he has lawfully stopped, such as a pat-down of the outer clothing, if he has a reasonable suspicion that the frisk is necessary for the preservation of his safety or the safety of others.

Traffic Stop (Seizure)

A traffic stop if valid if the officer has reasonable suspicion or probable cause that a traffic law has been violated.

Admissibility of a Second Confession (Miranda)

If an initial confession is obtained in violation of Miranda, but the defendant later receives Miranda warnings and confesses again, the confession may be admissible if the initial confession was the result of a good faith mistake.

Knock and Announce

Most states and the federal government mandate that a police officer, when executing either a search or an arrest warrant, must generally knock and announce his purpose before entering.

Consent (Exception to Warrant Requirement)

Neither a search warrant or probable cause is required for a search that is consented to by the defendant. The search cannot exceed the scope of consent. For permission to constitute consent, the permission must be given voluntarily. Permission given under threats of harm or compulsion does not constitute consent.

Invocation (Miranda)

The right to counsel and the right to silence under the 5th Amendment are not automatic. In order to invoke either right, the accused must make a clear, unambiguous statement asserting their rights. Once the right to counsel has been asserted, the police cannot question the defendant any further about any crimes. If the accused makes an ambiguous statement asserting his rights, police are under no obligation to clarify and may continue to interrogate the accused.

Miranda Rights

Under the 5th Amendment, any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights.

Identification Procedures

Under the Due Process Clause, an identification resulting from an identification procedure arranged by the police that was impermissibly suggestive or provided a substantial likelihood of misidentification will be excluded as evidence.

Exclusionary Rule

Under the exclusionary rule, evidence obtained in violation of the accused's 4th, 5th, or 6th Amendment rights may not be introduced at trial to prove her guilt. Subject to exceptions, the exclusionary rule applied to evidence initially seized as a result of the violation, and to derivative evidence discovered as a result of the initial violation, also known as "fruit of the poisonous tree."

Police Checkpoint (Seizure)

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles.

Standing (4th Amendment)

A defendant cannot successfully challenge governmental conduct as a violation of his 4th Amendment protections unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place to be searched or the item seized.

Right to Testify at Trial

A defendant has a right to testify and to present evidence on his own behalf.

Right to Represent Oneself

A defendant has the constitutional right to refuse counsel and proceed pro se at trial. The waiver of the right to counsel must be knowingly and intelligently made. To that end, the court should make the defendant aware of the dangers and disadvantages of self-representation, such as the inability to raise an "ineffective assistance of counsel" defense on appeal.

Waiver (Miranda)

A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowing and voluntarily. Silence on the part of the suspect is not sufficient to waive his Miranda rights; he must make an affirmative statement. However, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. The police has no obligation to inform the defendant that his attorney is trying to reach him.

Competence to Stand Trial

A defendant's incompetency is a bar to trial. The judge has a constitutional duty to investigate and determine the competence of the defendant to stand trial if such evidence is apparent to the judge. The test for whether a defendant is competent to stand trial is the same test for determining whether the defendant is competent to plead guilty: whether the defendant comprehends the nature of the proceedings against him and has the ability to consult with a lawyer with a reasonable degree of rational understanding.

Guilty Pleas

A guilty plea is an admissible to the facts contained in the charging document. A guilty plea must be both intelligent and voluntary. The record must reflect that the judge has determined that the defendant knows and understand: 1. The nature of the charges and their essential elements; 2. The consequences of the plea (e.g. the maximum and minimum possible sentences, possible immigration consequences); and 3. The rights the defendant is waived (e.g. right to a jury trial).

Seizure of Persons

A person is seized by the police when the officer physically touches a subject or when the subject submits to the officer's show of authority. In determine whether a seizure has occurred, courts consider whether, in view of the totality of the circumstances, a reasonable person would believe he was not free to leave.

Search

A search occurs when the government: 1. Violates the defendant's reasonable expectation of privacy; or 2. Physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects).

Automobile Exception (Exception to Warrant Requirement)

A search warrant is not required to search a vehicle if the police have probable cause to believe that it contains contraband or evidence of criminal activity. The police may search anywhere in the car believed to contain contraband or evidence, including the trunk and locked containers.

Warrant Requirement (Search)

A valid search warrant must: 1. Be issued by a neutral and detached magistrate based on probable cause; 2. Be supported by oath or affidavit; and 3. Describe the places to be searched and the items to be seized with particularity.

Admissibility of a Voluntary Confession (Miranda)

A voluntary confession that was made after Miranda warnings were properly given is not protected under the 5th Amendment and will be admissible. A voluntary statement made in violation of Miranda will be excluded as substantive evidence, but is admissible as impeachment evidence if inconsistent with later testimony. Any physical fruits of a voluntary confession can be admissible evidence.

Search Incident to a Lawful Arrest (Exception to Warrant Requirement)

A warrantless search is valid if it is made incident to a lawful arrest and it is reasonable in scope. If the arrest is invalid, any search made incident to it is invalid. A search incident to arrest is reasonable if limited to the person of the suspect and his immediate surrounding area (i.e. his "wingspan"). If the suspect is arrested in his time, the police can search areas within his reach, and may conduct a protective sweep of the home for other suspects who may be hiding. If a suspect is arrested in a vehicle, an officer can search the glove compartment if it is within reach of the defendant, or if it is reasonable that evidence of the offense may be found therein.

Arrest (Seizure)

An arrest generally requires an arrest warrant. An arrest warrant is issued by a detached and neutral magistrate upon a finding of probable cause that a crime has been committed by this person. A warrantless arrest is permitted if any crime is committed in the officer's presence, or if an officer has probable cause to believe that a felony has been committed by the accused.

Admissibility of an Involuntary Confession (Miranda)

An involuntary confession is inadmissible for any purpose. Whether a confession was involuntary is determined based on the totality of the circumstances, considering: 1. Police conduct; 2. Defendant's characteristics (age, education, experience); and 3. Timing of the statement.

Custody (Miranda)

Custody is a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. The test is whether a reasonable person would have believed he could leave.

Good Faith Reliance (Exception to the Exclusionary Rule)

Evidence will not be excluded if the police acted in good faith executing a facially valid warrant later determined to be invalid. This exception applies where the invalidity of a warrant results from isolated police negligence, rather than deliberate police misconduct. Additionally, a police officer acting in good faith pursuant to an existing law which is later declared unconstitutional will not be grounds for exclusion. In both situations, good faith is limited to the objective good faith of a reasonable police officer.

Attenuation (Exception to the Exclusionary Rule)

Evidence will not be excluded under the exclusionary rule if the chain of causation between the primary taint and the evidence has been so attenuated as to "purge" the taint. Both the passage of time and/or intervening events may attenuate the taint.

Independent Source Doctrine (Exception to the Exclusionary Rule)

Evidence will not be excluded under the exclusionary rule if the evidence was discovered in part by an independent source unrelated to the tainted evidence.

Inevitable Discovery Rule (Exception to the Exclusionary Rule)

Evidence will not be excluded under the exclusionary rule if the prosecution would have been inevitably discovered in the same condition through lawful means.

Re-Initiation (Miranda)

If the suspect voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the suspect, such as a statement that the suspect spontaneously blurts out, can be admissible because it is not made in response to interrogation. Further, while generally the police may not re-approach the defendant after he has invoked his rights, if there is a break in custody for 14 days or more, police may re-approach the defendant, give fresh Miranda warnings, and attempt to get a waiver.

Plain View (Exception to Warrant Requirement)

In areas where a defendant has a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in a search warrant, if: 1. The officer is lawfully on the premises; and 2. The incriminating character of the item is immediately apparent.

Right to a Speedy Trial

In determining whether a defendant's right to a speedy trial has been violated, courts weigh the following factors to determine whether the state made a "diligent, good-faith effort" to bring the defendant to trial: 1. Length of the delay; 2. Reason for the delay; 3. Defendant's assertion of a right to a speedy trial; and 4. Prejudice to the defendant.

Interrogation (Miranda)

Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.

Automobile Frisk

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if: 1. The police possess a reasonable belief that the suspect may gain immediate control of a weapon; and 2. The search is limited to areas that might contain a weapon. If the officer finds contraband during the frisk, this can give rise to probable cause to arrest or search the rest of the vehicle.

State Action (4th Amendment)

The 4th Amendment limits governmental action, not the conduct of private persons, unless the private person is acting as an "instrument or agent of the government."

4th Amendment

The 4th Amendment protects persons against unreasonable seizures and searches.

Double Jeopardy

The 5th Amendment Double Jeopardy Clause provides three protections: 1. Protection against a second prosecution for the same offense after acquittal; 2. Protection against a second prosecution for the same offense after conviction; and 3. Protection against multiple punishments for the same offense. If a defendant's conduct may be prosecuted as two or more crimes, then the Blockburger test is applied to determine whether the crimes constitute the same offense for double jeopardy purposes. Under this test, each crime must require the proof of an element that the other does not to be considered a separate offense. The Blockburger test generally bars successive prosecutions for greater and lesser included offenses.

Right to Counsel (6th Amendment )

The 6th Amendment right to counsel automatically attaches at all critical stages of a prosecution, after formal proceedings have begun. The critical stages of prosecution include a post-arrest initial appearance, formal charge, preliminary hearing, indictment, information, arraignment, post-charge in-person lineups, and questioning by a government informant (even if the defendant knows the identity of the informant). Once the 6th Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings.

Waiver (6th Amendment Right to Counsel)

The 6th Amendment right to counsel can be waived voluntarily, knowingly, and intelligently.

Stop and Frisk & "Plain Feel"

Under the "plain feel" exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity as contraband immediately obvious, then the officer may seize the evidence.

Confrontation Clause (6th Amendment)

The Confrontation Clause of the 6th Amendment provides a criminal defendant with the right to confront witnesses against him, unless preventing such confrontation is necessary to further an important public policy and the testimony is reliable. The Confrontation Clause also limits the use of hearsay evidence in a criminal trial. Out-of-court statements by witnesses that are "testimonial" are barred under the Confrontation Clause, unless the witnesses are unavailable and the defendant has prior opportunity to cross-examine those witnesses, regardless of the reliability of the statements.

Burden of Proof

The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt.

5th Amendment

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment.

Exigent Circumstances (Exception to Warrant Requirement)

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances. Several circumstances can satisfy the exigency requirement, like hot pursuit of a fleeing felon, danger of destruction of evidence, and police or public safety.

Sentencing Enhancement

When a sentence may be increased if additional facts are established, a jury must determine the existence of such facts beyond a reasonable doubt, unless the fact is a prior conviction. Enhancement of a defendant's sentence by a judge without such a determination violates the defendant's right to a jury trial.

Right to a Separate Trial from a Co-Defendant

When co-defendants are represented by the same attorney, the court must conduct a prompt inquiry into potential conflicts of interest and advise the defendants of the right to separate representation. Further, the accused may assert a demand for a severance of the trial of his case from a co-defendant's case whenever the prosecution intends to introduce (i) a confession of a co-defendant that, (ii) implicates the non-confessing defendant, but (iii) is not admissible against the non-confessing defendant, and (iv) cannot be edited to exclude the inculpation of the non-confessing defendant.